Mackey v. StateMackey v. State
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[¶ 1] Kyle T. Mackey appeals from the trial court’s order for amended judgment and amended judgment denying and dismissing his application for post-conviction relief. We affirm.
I
[¶ 2] In April 2010, Mackey pled guilty to one count of gross sexual imposition (“GSI”) and another count of GSI was diverted for the duration of Mackey’s imprisonment and probation. On August 10, 2010, the trial court sentenced Mackey to thirty years in prison. The court ordered Mackey to serve eight years and suspended the remaining twenty-two years for five years. On September 9, 2010, Mackey appealed from the criminal judgment. On January 28, 2011, while the appeal was pending, Mackey moved to withdraw his guilty plea, arguing the sentence did not conform to the plea agreement and alleging the sentence was illegal. The trial court amended Mackey’s sentence, reducing it to fifteen years, and Mackey filed a second appeal from the court’s order. This Court affirmed the trial court’s order amending his sentence and denying his motion to withdraw his guilty plea. State v. Mackey, 2011 ND 203, 805 N.W.2d 98.
[¶ 3] Mackey filed an application for post-conviction relief on December 15, 2011. In his application, Mackey again sought to withdraw his guilty plea, claiming he lacked an understanding of the law in relation to the facts of his case and his plea was not voluntary. The State responded, requesting dismissal and arguing Mackey’s attempt to withdraw his guilty plea was barred on the grounds of misuse of process. The trial court granted the State’s request and entered judgment dismissing Mackey’s petition for post-conviction relief on January 10, 2012.
[¶ 4] Following the dismissal of his application, Mackey moved the trial court to reconsider his application. Mackey continued to claim he did not understand the factual basis surrounding his guilty plea and, for the first time, alleged he received ineffective assistance of counsel at the time of his plea of guilty and on appeal. The court treated Mackey’s motion to reconsider as an amendment to his original application for post-conviction relief, and the
II
[¶ 5] “ ‘Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure.’ ”
Delvo v. State,
2010 ND 78, ¶ 10, 782 N.W.2d 72 (quoting
Clark v. State,
2008 ND 234, ¶ 11, 758 N.W.2d 900). The Court reviews the summary dismissal of an application for post-conviction relief in the same manner as an appeal from summary judgment.
Id.
Under
Ill
[¶ 6] Mackey argues the trial court erred by failing to conclude he received ineffective assistance of counsel. In Murchison v. State, this Court explained the requirements a defendant must meet for an ineffective assistance of counsel claim to succeed:
“[A] defendant has a heavy burden of proving (1) counsel’s representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel’s deficient performance. Effectiveness of counsel is measured by an objective standard of reasonableness considering prevailing professional norms. To prevail on an ineffective assistance of counsel claim, the defendant must first overcome the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Trial counsel’s conduct is presumed to be reasonable and courts consciously attempt to limit the distorting effect of hindsight. To demonstrate prejudice, the defendant must establish a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding wouldhave been different, and the defendant must specify how and where trial counsel was incompetent and the probable different result. A reasonable probability is a probability sufficient to undermine confidence in the outcome.... ”
2011 ND 126, ¶ 8, 799 N.W.2d 860 (quoting State v. Myers, 2009 ND 141, ¶¶ 14-15, 770 N.W.2d 713); see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
[¶ 7] Mackey’s ineffective assistance of counsel claim is essentially a collateral attack on the manner in which the factual basis of his guilty plea was established and whether the factual basis was sufficient. In order to determine whether there is a genuine issue of material fact as to the effectiveness of Mackey’s counsel’s representation and, if Mackey’s counsel’s representation was ineffective, whether Mackey was prejudiced by such ineffective representation, we must first determine whether the factual basis for Mackey’s guilty plea was established.
A
[¶ 8] Mackey claims
[¶ 9] Interpretation of a court rule is a question of law.
State v. Ebertz,
2010 ND 79, ¶ 8, 782 N.W.2d 350. When interpreting a rule, “we apply the rules of statutory construction and look at the language of the rule or statute to determine its meaning.”
Id.
During Mackey’s April 14, 2010, plea hearing, the court asked Mackey’s attorney, “do you acknowledge that there’s a factual basis for this plea of guilty?” and Mackey’s attorney responded, “I would acknowledge and so stipulate.”
B
[¶ 10] While Mackey does not argue the factual basis for his guilty plea was not established in any manner, because the “lack of a factual basis for a plea is a substantial defect calling into question the validity of the plea[,]” the adequacy of the factual basis for Mackey’s guilty plea must be addressed. United States v. Adams, 448 F.3d 492, 502 (2nd Cir.2006) (“ ‘Such defects are not technical, but are so fundamental as to cast serious doubt on the voluntariness of the plea,’ ... and require reversal and remand so that the defendant may plea anew or stand trial.”) (quoting Godwin v. United States, 687 F.2d 585, 591 (2nd Cir.1982)); United States v. McCreary-Redd, 475 F.3d 718, 726 (6th Cir.2007) (concluding “the district court’s failure to establish a factual basis ... affected [the defendant’s] substantial rights”); Carreon v. United States, 578 F.2d 176, 179 (7th Cir.1978) (stated that “[w]hen the factual-basis requirement is not satisfied ... the question of voluntariness is left open” and “ ‘if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void’ ”) (quoting McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)).
[¶ 11] “ ‘When a defendant applies for post-conviction relief seeking to withdraw a guilty plea, the application is treated as one made under
The standard for a plea withdrawal differs depending upon when the motion to withdraw the guilty plea is made.... When a court has accepted a plea and imposed sentence, the defendant cannot withdraw the plea unless withdrawal is necessary to correct a manifest injustice. The decision whether a manifest injustice exists for withdrawal of a guilty plea lies within the trial court’s discretion and will not be reversed on appeal except for an abuse of discretion. An abuse of discretion under N.D.R.Crim.P. [11(d) ] occurs when the court’s legal discretion is not exercised in the interest of justice. 2
State v. Bates,
2007 ND 15, ¶ 6, 726 N.W.2d 595 (citations omitted). In the context of a motion to withdraw a guilty plea, a court abuses its discretion if it does not allow a defendant to withdraw a guilty plea when the court has erred by failing to establish a sufficient factual basis for the defendant’s guilty plea.
See, e.g., Kaiser v. State,
417 N.W.2d 175, 179 (N.D.1987). However, whether a factual basis is sufficient to support a defendant’s guilty plea is a question of law, and “[questions of law are fully reviewable on appeal in post-
[¶ 12] Establishing a factual basis ensures a “defendant is guilty of the crime charged.” Bates, 2007 ND 15, ¶8, 726 N.W.2d 595. “The ideal means to establish the factual basis for a guilty plea is for the district court to ask the defendant to state, in the defendant’s own words, what the defendant did that he believes constitutes the crime to which he is pleading guilty.” United States v. Tunning, 69 F.3d 107, 112 (6th Cir.1995). “This ‘ideal’ method is by no means the only method, however.” Id. Our Court has identified three ways in which a factual basis may be determined:
“First, the court could inquire directly of the defendant concerning the performance of the acts which constituted the crime. Secondly, the court could allow the defendant to describe to the court in his own words what had occurred and then the court could question the defendant. Thirdly, the court could have the prosecutor make an offer of proof concerning the factual basis for the charge.”
Bates,
2007 ND 15, ¶8, 726 N.W.2d 595 (quoting
Kaiser,
417 N.W.2d at 178). Ultimately though, in order to establish a sufficient factual basis “[a]n inquiry might be made of the defendant, of the attorneys for the government and the defense, of the presentence report when one is available, or by whatever means is appropriate in a specific case.”
[¶ 13] In addition to questioning the parties, a trial court ‘“may conclude that a factual basis exists from anything that appears on the record.’ ”
United States v. Mastrapa,
509 F.3d 652, 660 (4th Cir.2007) (quoting
United States v. DeFusco,
949 F.2d 114, 120 (4th Cir.1991));
see also United States v. Trejo,
610 F.3d 308, 317 (5th Cir.2010) (explaining the entire record may be examined including “the facts gleaned from the plea agreement and plea colloquy, the factual findings relied upon in the presentence report (‘PSR’), as well as ‘fairly drawn’ inferences from the evidence presented both post-plea and at the sentencing hearing”). Relying on the contents of the entire record for finding a factual basis is consistent with the language of
[¶ 14] Mackey was charged under
[¶ 15] After reviewing the record, the available evidence is sufficient to have allowed the trial court to establish a
[¶ 16] In the present case, none of the three typical means for establishing a factual basis were utilized. While these “ideal means” are certainly preferred, the trial court did not err by failing to utilize such processes. Between the testimony of the facts underlying Mackey’s GSI offense during the sentencing hearing and the factual allegations contained in the criminal information, a sufficient factual basis for Mackey’s guilty plea was established.
C
[¶ 17] The trial court did not err by not directly questioning Mackey regarding the factual basis for his guilty plea or by establishing a valid factual basis by relying on the entire record. The fact that Mack-ey’s counsel did not object to either of these practices does not support Mackey’s counsel’s representation fell below an objective standard of reasonableness. Further, even if Mackey’s counsel would have objected to either of these practices, such objections would not have demonstrated Mackey was prejudiced. Because the court did not err by employing these practices, the result of the proceeding would not have been different. Mackey has failed to raise a genuine issue of material fact with respect to his ineffective assistance of counsel claim.
IV
[¶ 18] Mackey’s remaining arguments are not meritorious, and we decline to address them on appeal. We affirm the trial court’s amended judgment dated February 10, 2012, dismissing Mackey’s application for post-conviction relief.
[¶ 19] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM and CAROL RONNING KAPSNER, JJ., concur.
Notes
. In 1982, when
State v. Hagemann
was decided,
. “A new subdivision (d) on plea withdrawal was transferred to